United States Department of the Army, Human Resources Command, St. Louis, Missouri and United States Departnment of the Army, Information Support Activity, St. Louis, Missouri (Respondents) and American Federation of Government Employees, Local 900, AFL-CIO (Charging Party)

This case is before the Authority
on exceptions to the attached decision of the Administrative Law Judge filed by
the Charging Party. The Respondents Human Resources Command (HRC) and Information
Support Activity (ISA) filed an opposition.

The consolidated, amended complaints
allege that Respondent ISA issued proposed removals of the Charging Party’s
president and chief steward that were motivated by their protected activities.
The complaints also allege that both Respondents directed that the employees’
tours of duty be fixed at 7:30 a.m. to 4:00 p.m., that they be barred from
their official duty locations, that they report daily to the union office, and
that they be accompanied by military escorts at all times while in the Respondents’
facilities. The complaints allege that, by this conduct, the Respondents
violated § 7116(a)(1), (2), and (4) of the Federal Service
Labor-Management Relations Statute (the Statute). The Judge recommended that
the Authority dismiss the complaints.

For the reasons that follow, we
conclude that the Judge erred in determining that the § 7116(a)(2) and (4)
allegations are barred by § 7116(d) of the Statute, and we remand for a
decision on the merits. We defer resolution of the independent § 7116(a)(1)
allegation pending that decision.

II. Background and
Judge’s Decision

Respondent ISA proposed to remove the chief
steward on the basis of four charges: (1) fraudulently receiving pay for
work not performed; (2) absence without leave (AWOL); (3) falsifying
official time sheets; and (4) lying during an investigation. Respondent ISA
proposed to remove the president on the basis of five charges: (1) fraudulently
obtaining entitlements; (2) failing to request leave properly; (3) AWOL;
(4) falsifying official time sheets; and (5) lying during an investigation. Judge’s
Decision at 6. The Charging Party filed unfair labor practice (ULP) charges,
which alleged that the proposed removals were motivated by the employees’
protected activities. The charges also alleged that both Respondents unlawfully
directed that the employees’ tours of duty be fixed at 7:30 a.m. to 4:00 p.m.,
that they be barred from their official duty locations, that they report daily
to the union office, and that they be accompanied by military escorts at all times
while in the Respondents’ facilities. The General Counsel issued amended complaints,
which were consolidated, and alleged that, by this conduct, the Respondents
violated § 7116(a)(1), (2), and (4). Both complaints also alleged that, by
this conduct, Respondents independently violated § 7116(a)(1). Id.at 2-4.

Subsequently, Respondent ISA removed both
employees on the basis of all of the charges against them, and each employee
filed a grievance, which was denied by Respondent ISA. The removal grievances
were consolidated and submitted to arbitration. An arbitrator issued separate
awards that sustained the grievances, in part. As to the chief steward, the
arbitrator found that Respondent ISA had failed to prove the charges of
falsifying official time sheets, fraudulently receiving pay, and lying during
an investigation. The arbitrator mitigated the removal to a 30-day
suspension. As to the president, the arbitrator found that Respondent ISA had
failed to prove the charges of falsifying official time sheets, fraudulently
receiving pay, failing to request leave properly, and being AWOL. The
arbitrator mitigated the removal to a 15-day suspension. The arbitrator also
ordered Respondent ISA to immediately terminate the military escort and
confinement policy. Id.at 8 n.2.

The Judge first considered whether any issues
raised in the complaints were barred by § 7116(d) as issues that could properly
be raised under an appeals procedure. The Judge concluded that the §
7116(a)(2) and (4) allegations ((a)(2) and (4) allegations) were barred, but
that the independent § 7116(a)(1) allegation (independent (a)(1) allegation) was
not barred. Id.at 17.

In examining the (a)(2) and (4) allegations,
the Judge noted that, once the Respondent ISA issued the removal decisions, the
Authority no longer had jurisdiction over the proposed removals, and the
General Counsel had amended the complaint to reflect the lack of jurisdiction.
However, the Judge examined whether the security measures and restrictions that
were placed on the employees at the time of their proposed removals were
matters separable from their removals. According to the Judge, if the security
measures and restrictions were not separable from the removals, then the (a)(2)
and (4) allegations were barred. Id.at 16.

The Judge concluded that the
security measures and restrictions were inseparable from the removals because
they were “clearly bound up with the [removal] actions.” Id. at 17. In
so concluding, the Judge relied on the Authority’s decision in United States
Department of the Navy, Naval Resale Activity, Guam, 40 FLRA 30 (1991) (Naval
Resale Activity). The Judge stated that, although the grievances did not
specifically raise the matter of the security measures and restrictions, the
measures and restrictions were part of the factual matters presented to the
arbitrator. In addition, the Judge viewed the security measures to be “the
direct result of the [removal] actions and any discussion of those measures
returns to the basis of the [removal] actions themselves.” Judge’s Decision at
17. Finally, the Judge addressed whether the Authority has jurisdiction
because the ULP focused on the Charging Party’s institutional interests rather
than on the rights of the employees. The Judge found that the Authority did
not have jurisdiction on this basis because the (a)(2) and (4) allegations did
not focus on the Charging Party’s institutional interests. Id. Consequently,
the Judge concluded that the (a)(2) and (4) allegations were barred as issues
that could properly be raised under an appeals procedure. Id.

As to the independent (a)(1)
allegation, the Judge found that the allegation was not barred by § 7116(d).
In contrast to the focus of the (a)(2) and (4) allegations, the Judge found
that the focus of the independent (a)(1) allegation was on the Charging Party’s
institutional interests. Id. Addressing the merits of the independent
(a)(1) allegation, the Judge concluded that the security measures and
restrictions did not interfere with, restrain, or coerce employees in the
exercise of their rights under the Statute. Id.at 22-23. The Judge
recognized that the standard for determining interference with, or restraint or
coercion of, employees in the pursuit of protected rights is an objective one:
“[W]hether, under the circumstances, the statement or conduct would tend to
coerce or intimidate the employee, or whether the employee could reasonably
have drawn a coercive inference from the statement [or conduct].” Id.at 21.

In finding no violation, the Judge stated
that, once the chief steward and the president lost their security badges, they
no longer had free access to the facilities. The Judge noted that both the
General Counsel and the Charging Party claimed that the usual practice was to
use civilian escorts. However, the Judge found that the General Counsel and
the Charging Party did not address the testimony of the commanding officer of
Respondent HRC that she used military personnel because of the logistical
problems of using civilian personnel to be escorts and guards on a daily
basis. The Judge found this testimony to be “unrefuted and compelling.” Id. at 22. The Judge also stated that there was no indication that civilian escorts
would have been satisfactory to the General Counsel or the Charging Party. Id. In addition, she found no evidence that: (1) unit employees were aware of the
presence of the military escorts when they were stationed in the Union office;
(2) employees were unable to seek the assistance of the Union; or (3) the
chief steward or the president expressed any specific concern to the Respondents
(other than initial filing the ULP charges). Id.The Judge further
found that “the escort policy is clearly a security issue reserved to
management under [§] 7106(a).” Id.

Under all of these circumstances,
the Judge concluded that the security measures and restrictions during the
notice period of proposed removals did not have a chilling effect on unit
employees so as to constitute an independent violation of (a)(1). In so concluding,
the Judge noted that unit employees work with the military on a regular basis
and found that the use of military escorts was not a substantial departure from
the use of civilian escorts. Id.at 22-23.

Accordingly, the Judge recommended
that the Authority dismiss the complaints. Id.at 23.

III. Positions of the Parties

A. Charging Party’s Exceptions

As relevant here, the Charging Party excepts to
the Judge’s conclusion that the Authority lacked jurisdiction over the (a)(2)
and (4) allegations and the Judge’s conclusion that the security measures and
restrictions did not constitute an independent violation of (a)(1).[2]
Exceptions at 1-3.

The Charging Party argues that, under § 7116(d),
the Authority lacks jurisdiction only if the propriety of the security measures
and restrictions is an issue that can properly be raised before the Merit
Systems Protection Board (MSPB). The Charging Party claims that it is
indisputable that the propriety of the security measures and restrictions is
not subject to the jurisdiction of the MSPB. Id.at 20-21. The
Charging Party also argues that the propriety of the security measures and
restrictions is separable from the removals because the basis for the removals
was different from the basis for the imposition of the security measures and
restrictions, which was past volatile behavior of both of the employees. Id.at 25. The Charging Party maintains that, even if the removals were
warranted, union animus played a role in the security measures and restrictions
because the chief steward and the president were the only employees who were
ever required to be escorted by uniformed military personnel during a period of
proposed removal and were ever confined to one office. Id.at
23-24.

The Charging Party also argues that the Judge
erred in finding no independent violation of (a)(1). According to the Charging
Party, any reasonable unit employee observing the escorting of the chief
steward and the president would have experienced coercion, interference, or
restraint in their exercise of union rights. Id.at 31. The
Charging Party further argues that the fact that unit employees continued to
seek the assistance of union representatives after the imposition of the
security measures and restrictions does not address whether other reasonable
employees declined to seek assistance and declined to become active in the Union. Id.at 34-35. The Charging Party claims that the violation is also
established by the chilling effect of the security measures and restrictions on
the chief steward and the president. Id.at 41.

B. Respondents’ Opposition

The Respondents contend that the Judge
correctly concluded that the Authority has no jurisdiction over the (a)(2) and
(4) allegations and that the security measures did not violate (a)(1). Opp’n
at 2. The Respondents assert that the security measures and restrictions could
not have been implemented but for the proposed removals and that, to determine
whether an unfair labor practice was committed, the Authority must consider
whether there was a legitimate reason for the security measures and
restrictions, which requires the Authority to consider the removal actions. In
the Respondents’ view, the relevant inquiry is whether the subject “could
properly be raised[,]” and the Respondents argue that the Judge correctly ruled
that the security measures and restrictions could properly have been raised in
the grievances over the removals. Id. at 9 (citing United States
Small Business Admin., Wash., D.C., 51 FLRA 413 (1995) (SBA), aff’d
in part, rev’d in part sub nom. Wildberger v. FLRA, 132 F.3d 784 (D.C. Cir.
1998) (Wildberger)). In this regard, the Respondents argue that it is
not necessary to find that the issue is within the jurisdiction of the MSPB to
be barred as a ULP. Id.at 10-11. However, in any event, the Respondents
argue that the issue of the security measures and restrictions could have been
raised under the MSPB procedure. Id.at 11.

As to the (a)(1) allegation, the Respondents
argue that testimony supports the Judge’s conclusion that unit employees were
not chilled by the security measures and that the chief steward and the
president were able to effectively represent the interests of the unit. Id.at 12. The Respondents also dispute the Charging Party’s claim that
military escorts were intimidating, asserting that the vast majority of
civilian employees work and interact with uniformed military personnel on a
daily basis. Id.at 13.

IV. Analysis and Conclusions

A. The Judge erred in
concluding that the (a)(2) and (4) allegations are barred by § 7116(d) of the
Statute.

1. Interpretation
and Application of § 7116(d)

Section 7116(d) provides, in the
first sentence, that “[i]ssues which can properly be raised under an appeals
procedure may not be raised as unfair labor practices[.]” In determining
whether an issue is barred by this provision, the Authority examines whether
the ULP charge arose from the same set of factual circumstances as the MSPB
appeal or grievance and whether the legal theories advanced in support of the
ULP charge and the MSPB appeal or grievance are substantially similar. When
they are, the Authority concludes that the ULP allegation is barred. E.g.,
Bureau of the Census, 41 FLRA 436, 446-47 (1991), rev’d sub nom.
Dep’t of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th
Cir. 1992) (Dep’t of Commerce).

In Bureau of the Census, the
Authority concluded that a ULP allegation was not barred by the first sentence of
§ 7116(d). Id.at 437. The employee in that case had filed
a ULP charge, and the General Counsel had issued a complaint, over a record of
infraction and a letter of proposed removal. When the respondent removed the
employee, the employee filed a grievance over the removal. The Authority ruled
that, because the record of infraction and letter of proposed removal could not
be appealed to the MSPB, the complaint was not barred by § 7116(d). Id.at 446-47. The court in Dep’t of Commerce reversed the Authority,
ruling that the challenge to the record of infraction and letter of proposed
removal and the challenge to the removal were inseparable and that the
complaint was barred. 976 F.2d at 888. In this regard, the court emphasized
that, although the MSPB cannot adjudicate ULP complaints, facts underlying ULP
charges can be challenged in the MSPB process as prohibited personnel practices
under 5 U.S.C. § 2302. Id.at 890.

Subsequently, in SBA, aff’d
in part, rev’d in part sub nom.Wildberger, the Authority clarified
that, when the factual predicate of the ULP allegation and the grievance or
MSPB appeal is the same and the legal theory of the ULP allegation is within
the jurisdiction of the MSPB, the Authority will determine that there is no
jurisdiction over the ULP allegation on the basis of § 7116(d). 51 FLRA
at 421-22. The Authority emphasized that it would apply this approach only in
cases when the matter raised as a ULP ripens into, or is inseparable from, a
matter appealable to the MSPB. In addition, the Authority stated that it would
continue to assert jurisdiction when the ULP allegation focuses on a union’s
institutional interests rather than on the rights of employees. Id.at 422. Applying this clarified approach, the Authority determined that
all three complaints in SBA were barred by § 7116(d). Id.at 422-25.

On appeal of SBA, the court in
Wildberger affirmed that a ULP allegation is barred by § 7116(d) when
the following circumstances are present: (1) the employee has raised all of
the issues that underlie the ULP in a grievance or MSPB appeal; (2) these
issues are within the MSPB’s jurisdiction; and (3) the arbitrator or the
MSPB has not declined jurisdiction over any of these issues. 132 F.3d at 790.
The court held that the Authority had correctly applied § 7116(d) to two of the
three complaints, but that, because the MSPB never addressed the theory raised
in the remaining complaint, which alleged disparate treatment, the Authority
had erroneously determined that this complaint was barred. Id.at
794. The court emphasized that § 7116(d) bars Authority jurisdiction over ULP
charges only if the same issues were considered by the MSPB or arbitrator as
affirmative defenses. Id.at 792. The court also emphasized
that its holding was narrowly tailored and did not address the proper
application of § 7116(d) when the specified circumstances were not
present. Id.at 790-91.

More specifically, the court in Wildberger
stated that its decision should not be interpreted to mean that all ULP charges
involving an employee who subsequently appeals an adverse action to arbitration
or the MSPB “should necessarily be subsumed” in the grievance or MSPB appeal. Id.at 795. The court stated that, in such a case, the Authority must
resolve whether the ULP charge “could be or should be subsumed” into the
grievance or MSPB appeal or whether, instead, the charge and the grievance or
MSPB appeal are sufficiently separate that the Authority has jurisdiction over
the charge notwithstanding the grievance or MSPB appeal. Id. The court
also stated that its decision was “not intended as either an endorsement or a
rejection of the Fourth Circuit’s holding in [Dep’t of Commerce].” Id.

B. Application of §
7116(d) to the (a)(2) and (4) allegations

Consistent with Wildberger and
Dep’t of Commerce, the Authority’s analytical framework for determining
jurisdiction under § 7116(d) is to examine whether the factual predicate
of the ULP charge is the same as the factual predicate of the MSPB appeal or
grievance and whether the legal theory advanced to support the ULP and the
grievance or MSPB appeal is substantially similar. Applying this analytical
framework, we conclude that the factual predicate of the grievances over the removal
actions and the factual predicate of the ULP charge over the imposition of the
security measures and restrictions are different and that, therefore, the
(a)(2) and (4) allegations are not barred.

The factual predicate of the
grievances before the arbitrator was the removal of the chief steward and the
president on the basis of the specified charges. In imposing the security
measures and restrictions, Respondent ISA did not rely on any of the specified
charges for removal. Instead, the expressed basis of the security measures and
restrictions was a need to protect government property and the past volatile
behavior of both of the employees. General Counsel’s Ex. 4 at 5-6; Ex. 7 at 15.
In addition, the evidence presented to the Judge confirmed that no other
employees who received a notice of proposed removal were required to be
escorted by military personnel and to be confined to one office. Tr.
at 43, 46-62. Consequently, proposed removals do not directly result in
the imposition of security measures and restrictions. This demonstrates that,
contrary to the finding of the Judge, the removals and the security measures
and restrictions are separable and that the complaints are not barred by § 7116(d).
See Overseas Educ. Ass’n v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987)
(factual predicates were different because the situations and corresponding
actions confronting the aggrieved party were different); Equal Employment
Opportunity Comm’n, 48 FLRA 822, 829 (1993) (factual situation underlying
the grievance was different from the factual situation underlying the ULP).
Moreover, because Respondent ISA did not rely specifically on any of the
specified charges for removal in imposing the security measures, consideration
of the security measures does not “return[] to the basis of the [removal]
actions themselves[,]” as found by the Judge. Judge’s Decision at 17. Furthermore,
although the (a)(2) and (4) allegations focus on the president and chief
steward, as found by the Judge, the allegations also implicate the Union’s institutional interests that are conceptually separate and distinct from the
individual interests raised by the removal grievances. See 305th
Air Mobility Wing, McGuire Air Force Base, N.J., 54 FLRA 1243, 1261-62
(1998) (ALJ decision) (every § 7116(a)(2) violation implicates an
institutional interest of a labor organization). Therefore, we conclude that
the (a)(2) and (a)(4) allegations are not barred by § 7116(d).

In concluding that the (a)(2) and
(4) allegations are not barred, we have applied the decisions in both Wildberger
and Dep’t of Commerce. Consistent with Wildberger, the
allegations are not barred because, although the security measures and
restrictions were mentioned in the grievances and the arbitrator’s awards, similar
to the disparate treatment complaint remanded by the court in Wildberger,
the security measures and restrictions were not addressed by the arbitrator,
and these issues were not necessary to the arbitrator’s resolution of the
removal grievances. Moreover, for the reasons already discussed, we find no
basis for concluding that the allegations should have been subsumed into the
removal grievances. Consistent with Dep’t of Commerce, the allegations
are not barred because the challenge to the security measures and restrictions
and the challenge to the removals are not inseparable. In addition, unlike Dep’t
of Commerce, it is not clear that the facts underlying the (a)(2) and (4)
allegations can be challenged in the MSPB process as prohibited personnel
practices. In this regard, the security measures and restrictions do not
appear to be appealable personnel actions, the legality of which can properly
be challenged before the MSPB. SeeBarnes v. Small, 840 F.2d
972, 981 (D.C. Cir. 1988) (MSPB’s jurisdiction to reverse agency actions that
are not in accordance with law does not “give the MSPB authority to administer
a body of law entrusted . . . to the exclusive jurisdiction of the FLRA.”).

Finally, we note that, in
concluding that the security measures and restrictions were “clearly bound up”
with the removal grievances, the Judge relied on Naval Resale Activity.
Judge’s Decision at 17. However, Naval Resale Activity interpreted and
applied the jurisdictional bar of § 7122(a), not § 7116(d), and the
Authority addressed the question of whether the award “relat[ed] to a matter
described in [§] 7121(f)[.]”[3]
5 U.S.C. § 7122(a). As the Authority advised in Bureau of the
Census, which rejected reliance on case law under § 7122(a), a ULP
complaint under § 7116(d) is not barred “simply because it ‘relates to’ a
matter that is the subject of an appeals procedure.” 41 FLRA
at 448. Consequently, the Judge’s reliance on Naval Resale Activity
was misplaced.

Accordingly, we conclude that the
(a)(2) and (4) allegations are not barred by the first sentence of § 7116(d).
We remand these allegations for a decision on the merits because the record is
insufficient to resolve whether the Respondents violated § 7116(a)(2) and
(4) of the Statute.

C. Consideration of (a)(1)
allegation is deferred.

We find that the resolution of the
(a)(2) and (4) allegations is germane to the resolution of the independent
(a)(1) allegation. Consequently, we defer resolution of the Charging Party’s
exception to the Judge’s recommended dismissal of the independent (a)(1) allegation
until adjudication of the merits of (a)(2) and (4) allegations.

V. Decision

The (a)(2) and (4) allegations are remanded to
the Judge for a determination on the merits, and the resolution of the
exception to the recommended dismissal of the independent (a)(1) allegation is
deferred pending that adjudication.

Member Beck, Dissenting in Part:

I disagree with my colleagues in
one respect. I would not defer resolution of the Charging Party’s exception to
the Judge’s recommended dismissal of the independent § 7116(a)(1) charge.
This charge is, as the Majority repeatedly characterizes it, “independent” of
the other charges that the Judge erroneously found to be barred.

Without further explanation, the
Majority finds that the resolution of the other ULP charges is “germane” to the
resolution of the independent § 7116(a)(1) charge. Majority at 9. The
Majority does not indicate how the Judge’s consideration of the other charges
could alter the Judge’s recommended decision with respect to the independent § 7116(a)(1)
charge -- a recommended decision that is self-contained, supported by
substantial evidence in the record, and well-reasoned. It is not evident to me
how the Judge’s consideration of the other charges would or could alter the
outcome with respect to the independent § 7116(a)(1) charge. Accordingly,
I would deny the Charging Party’s exception with respect to the independent § 7116(a)(1)
charge.

[1]
Member Beck’s opinion, dissenting in part, is set forth at the end of this
decision.

[2]
The Charging Party also excepts to other aspects of the Judge’s decision.
However, in view of our decision, it is not necessary to address the other
exceptions further.

[3]
Section 7122(a) provides that exceptions may not be filed to an arbitration award
“relating to a matter described in [§] 7121(f)[.]”